Articles Posted inHow We Treat People

The First Circuit’s decision in United States v. Lopez-Pastrana, 15-1894 (1st. Cir. May 4, 2018) is long, but can be summed up simply: federal courts can’t impose a term of supervised release on a charge that resulted in no prison time, even if the sentencing court is trying to help the defendant obtain federally-subsidized medical care for a serious condition. Here’s what happened in Lopez-Pastrana:

The Government charged Mr. Lopez-Pastrana with two drug crimes and two weapons crimes. He entered into a plea agreement. Mr. Lopez-Pastrana would plead guilty to possession of marijuana with intent to distribute (Count III) and possession of a firearm in furtherance of drug trafficking (Count IV). In exchange, the Government would dismiss Counts I and II. The agreed-upon (but non-binding) sentencing range was zero to six months imprisonment for Count III, and a 60 month mandatory-minimum on Count IV. Of course, there was an appeal waiver in the plea agreement.

At sentencing, Mr. Lopez-Pastrana explained he has Chronic Obstructive Pulmonary Disease (“COPD”), which, if you believe the commercial, makes you feel like an elephant or some other large animal is sitting on your chest. His sentencing attorney told the district court that Mr. Lopez-Pastrana had a 20% chance of surviving the next four years. The Government thought he was overstating the matter. According to the Government, the Bureau of Prisons represented that “his medical condition is not an end-stage disease” and that his condition had improved during the four months he was incarcerated and awaiting sentencing. (Aside: BOP has a very high opinion of its ability to care for sick people. Check out the 11th Circuit’s opinion in United States v. Seecharan, where a defendant’s doctor opined the defendant would die of infection if he went to prison, and the district court ordered incarceration based on BOP’s response was that it “could handle anything.” Happily, the 11th Circuit reversed for resentencing).

Back to Mr. Lopez-Pastrana. The district court sentenced him to 60 months in a prison medical facility on Count IV, with 5 years of supervised release. But the sentence on Count III engendered some debate. The district court basically gave Mr. Lopez-Pastrana an ultimatum. Option 1: 12 months of home confinement with federally funded medical care as a condition of supervised release, and no time in prison. Option 2: 6 months in prison. Mr. Lopez-Pastrana took the 12 months of home confinement and appealed.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar. He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm. To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

As I’ve been writing about a lot over on Above the Law, one thing that is really not good about the federal criminal system is that it is extremely hard to attack government conduct.

This isn’t to say that all prosecutors or cops are bad. But they have massive amounts of unchecked power. And, my view at least, is that human nature is such that any given with power has at least a decent chance of abusing it. Prosecutors and cops aren’t saints – some of them are going to do what they ought not. And, when that happens, absent an egregious Brady violation and a really good judge, nothing much is likely to happen to the prosecutor.

Perhaps the hardest part of this is in entrapment law. The government should be in the business of catching crime, not creating crime to catch.

The war on terror[ism] is a massive new problem for society. And, of course, when there’s a massive new problem for society, that ends up being a massive new problem for lawyers.

Despite the debate about whether or not to close the detention facility in Guantanamo Bay – both between Obama when he was a candidate and as President, and in society at large – and the discussion about whether to have civilian or military trials for alleged terrorism suspects, a very real part of the war on terror[ism] has been playing out in our federal courts.

Previously, the court of appeals had issued an opinion that was critical of a particular Assistant United States Attorney. The Department of Justice filed a motion asking that the Ninth Circuit remove the name of that prosecutor from the public opinion.

He was on supervised release from the end of a federal sentence. Supervised release works a bit like probation for those who have been in prison – folks coming out of a federal prison have a period of years where they have to check in with a probation officer, be drug tested, and, if they mess up, sent back to prison.

One big way to mess up is to commit a new crime. The rub is that a person can be violated – and sent back to prison – for committing a new crime, not just for being convicted of committing a new crime.

The federal criminal justice system runs on pleas. If every person charged with a crime demanded that the courts give them the attention that the Constitution guarantees them, United States Attorney’s Offices wouldn’t be able to prosecute as many people as they do, and federal district courts would grind to a halt.

In the New York Times this week, Michelle Alexander, a law professor at Ohio State University – who wrote The New Jim Crow, arguing that our criminal justice policy is, in essence, a continuation of America’s legacy of not being so awesome about issues of race – wrote a piece arguing that criminal defense lawyers should band together and insist that all our clients go to trial to crash the system.

The Michelle Alexander piece has generated all kinds of attention, from geeky to professional.

Deanna Costello’s love knew no boundaries. Literally. For years she had a romantic relationship with a man who was not in the United States lawfully. It led to a strong judicial slapdown of the Department of Justice by one of our nation’s leading jurists, in United States v. Costello.

Ms. Costello’s Boyfriend

Ms. Costello lived in Cahokia, Illinois, perhaps five miles from St. Louis. She lived with a man from Mexico for a year ending in July 2003. That time ended when he was arrested on a federal drug charge. He plead guilty and was sent back to Mexico after his prison sentence.